| People v Salmans |
| 2008 NY Slip Op 02046 [49 AD3d 961] |
| March 13, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Brandon S.Salmans, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Sophie A. Jensen of counsel), forrespondent.
Appeal from a judgment of the County Court of Warren County (Hall, J.), renderedSeptember 27, 2006, convicting defendant upon his plea of guilty of the crimes of robbery in thesecond degree and menacing in the second degree.
Defendant was charged in a four-count indictment with robbery in the first degree, robbery inthe second degree, criminal possession of a weapon in the third degree and menacing in thesecond degree. Defendant thereafter agreed to plead guilty to robbery in the second degree andmenacing in the second degree in return for, among other things, a sentence of 10 years in prison,five years of postrelease supervision and restitution. Defendant did not waive his right to appealand the remaining counts of the indictment were dismissed with prejudice. County Courtsubsequently sentenced defendant to 10 years in prison and one year in jail (to run concurrently),ordered restitution and, among other things, imposed the statutory surcharge. Defendant nowappeals.
Defendant, as so limited by his brief, initially contends that the sentence of 10 years in prisonfollowed by five years of postrelease supervision is harsh and excessive and should be modifiedto the minimums permitted by law. Based upon our review of the record, and in light ofdefendant's criminal history, we perceive neither an abuse of discretion by County Court nor theexistence of any extraordinary circumstances warranting a reduction in the sentence imposed inthe interest of justice (see People vWashington, 4 AD3d 546, 548-549 [2004]). To the extent that defendant argues that theone-year jail term imposed on the misdemeanor charge of [*2]menacing in the second degree was not part of the plea agreement,we need note only that defendant pleaded guilty to both charges in exchange for a 10-year term ofimprisonment, and the imposition of the concurrent jail term did not deprive him of the benefit ofthat plea bargain.
As for defendant's claim that County Court was without authority to impose both restitutionand the statutory surcharge due to the provisions of Penal Law § 60.35 (6), defendantfailed to object to the surcharge at the time it was imposed or move for resentencing pursuant toCPL 420.10 (5); as such, this issue is not preserved for our review (see People v Dunn,254 AD2d 511, 512 [1998], lv denied 92 NY2d 1031 [1998], cert denied 527 US1024 [1999]; People v Burt, 142 AD2d 794 [1988]). In any event, "the plain language of[Penal Law § 60.35 (6)] permits the sentencing court to order both restitution and themandatory surcharge/crime victim assistance fee" where, as here, defendant has not yet maderestitution (People v Quinones, 95 NY2d 349, 352 [2000]). Moreover, we do not requirethat a defendant be advised, prior to his or her plea, that the statutory surcharge is a part of thesentence (see People v Swart, 20AD3d 691, 692 [2005]; People vNeu, 1 AD3d 798 [2003]; seealso People v Bonner, 21 AD3d 1184, 1185 [2005], lv denied 6 NY3d 773[2006]). Accordingly, we decline to disturb defendant's convictions.
Peters, J.P., Spain, Carpinello, Rose and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.